93 Decision Citation: BVA 93-10293
Y93
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 91-48 650 ) DATE
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THE ISSUES
1. Entitlement to an increased evaluation for
post-traumatic stress disorder, currently evaluated as
30 percent disabling.
2. Entitlement to service connection for non-Hodgkin's
lymphoma secondary to service in Vietnam.
REPRESENTATION
Appellant represented by: The American Legion
WITNESSES AT HEARING ON APPEAL
The veteran and his wife
ATTORNEY FOR THE BOARD
Jill L. Rygwalski, Associate Counsel
INTRODUCTION
This matter came to the Board of Veterans' Appeals (Board)
on appeal from a rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in
St. Petersburg, Florida. The veteran served on active duty
during the Vietnam era. A rating decision dated in January
1991 denied the veteran's claims for service connection for
non-Hodgkin's lymphoma secondary to service in Vietnam, and
for an increased evaluation for post-traumatic stress
disorder. The veteran filed a notice of disagreement in
February 1991 pertaining to both issues. A statement of the
case addressing the issue of service connection for
non-Hodgkin's lymphoma secondary to service in Vietnam was
issued in March 1991. The veteran's testimony at a hearing
held at the RO in April 1991 is accepted as the veteran's
substantive appeal for the issue of service connection for
non-Hodgkin's lymphoma secondary to service in Vietnam. The
hearing officer issued his decision in May 1991. A rating
decision dated in July 1991 continued to deny the claim for
an increased evaluation for post-traumatic stress disorder.
A supplemental statement of the case pertaining to both
issues was issued in July 1991. A statement submitted by
the veteran's representative in November 1991 is accepted as
the veteran's substantive appeal with respect to the issue
of an increased evaluation for post-traumatic stress
disorder.
The case was received and docketed at the Board in November
1991. The veteran has been represented in his appeal by The
American Legion. That organization submitted written
argument on behalf of the veteran in November 1991 and
January 1992.
REMAND
Initially, we note that at the hearing on appeal held in
April 1991, the veteran stated that his post-traumatic
stress disorder had increased in severity and that an
increased evaluation was warranted. He testified that his
service-connected psychiatric disorder is manifested
primarily by flashbacks, sleep disturbances, suicidal
ideation, a violent temper and intrusive thoughts. As
support for his contention that his disability has increased
in severity, he related an incident where he had threatened
his wife's physician with a gun.
The Board notes that the veteran was last examined by VA for
his service-connected psychiatric disorder in December
1990. Although subsequent hospital reports were submitted
by the veteran, they pertain to treatment for disabilities
other than the post-traumatic stress disorder, and only
incidentally referred to his post-traumatic stress
disorder. In light of the veteran's contentions, the Board
believes that further clinical development should be
completed prior to reaching a final decision on this issue.
We also note that the veteran testified at the hearing and
reported at the time of his VA examination performed in
December 1990, that he was currently receiving Social
Security Administration disability benefits. In light of
the contentions advanced and the state of the record
currently before us, the Board believes that the record upon
which the determination awarding disability benefits was
based should be obtained. Cashwell v. Derwinski,
U.S. Vet App. No. 90-967 (February 12, 1992).
Furthermore, the veteran contends that he first began having
lymph node discomfort in 1985; since that time he has
constantly experienced pain in the lymph nodes. We note
that the record indicates that the veteran was hospitalized
at the VA Medical Center in Lake City, Florida, in October
1985. At that time, the veteran complained of a lump under
the left arm with some pain in the left chest, shoulder and
neck of two weeks' duration. Lymph node biopsy was
performed later in the month; the diagnosis was lymph nodes
with unidentified organisms, acute and chronic inflammation
and reactive hyperplasia (left axilla). There are no
additional treatment reports of record pertaining to
treatment for a disability of the lymph nodes.
We note that the veteran's representative, in the informal
hearing presentation, has requested that the case be
remanded to the RO so that the veteran can be examined for
the purpose of confirming or ruling out a diagnosis of
non-Hodgkin's lymphoma. VA has a duty to assist the veteran
in the development of facts pertinent to his claim.
38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a)
(1992). The United States Court of Veterans Appeals has
held the duty to assist the veteran in obtaining and
developing available facts and evidence to support his claim
includes obtaining an adequate and current VA examination.
Littke v. Derwinski, 1 Vet.App. 90 (1990). In light of the
veteran's contentions and testimony at the hearing, and the
current clinical record, the Board believes that further
medical development, to include a VA examination, should be
completed.
Accordingly, the case is REMANDED to the RO for the
following actions:
1. The RO should obtain from the Social
Security Administration a copy of the
record upon which it based its award of
disability benefits to the veteran.
2. The RO should contact the veteran and
request that he provide the names and
addresses of all health care providers
who have treated him for post-traumatic
stress disorder since 1991, and who have
treated him for a disorder of the lymph
nodes since separation from service, as
well as the approximate dates of
treatment. Then, after any necessary
authorization is obtained from the
veteran, the RO should attempt to obtain
copies of all treatment records
identified by the veteran, which are not
currently of record and have not been
previously requested.
3. Then, the RO should arrange for a VA
psychiatric examination of the veteran to
determine the current extent of his
service-connected post-traumatic stress
disorder. All indicated studies should
be performed. The psychiatrist should
specifically comment on the degree of
social and industrial impairment which
the veteran experiences as a result of
his post-traumatic stress disorder. The
claims folder should be made available to
the examiner prior to the examination.
In addition, the RO should arrange for an
appropriate VA examination of the veteran
to determine whether the veteran has
non-Hodgkin's lymphoma. All indicated
studies should be performed. The claims
folder should be made available to the
examiner prior to the examination.
4. Thereafter, the RO should
readjudicate the claims for an increased
evaluation for post-traumatic stress
disorder and service connection for
non-Hodgkin's lymphoma secondary to
service in Vietnam, in light of the
evidence received pursuant to the
requested development.
If the veteran continues to disagree with any decision of
the RO, and if otherwise appropriate, a supplemental
statement of the case should be issued and the veteran and
his representative should be provided an opportunity to
respond. Then, the case should be returned to the Board for
further consideration, if otherwise in order. By this
REMAND, the Board intimates no opinion as to any of the
final outcomes warranted. No action is required of the
veteran, until he is contacted by the RO.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
*
JOHN J. CASTELLOT, SR., M.D.
ROBERT E. SULLIVAN
*38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of
Veterans' Appeals Section, upon direction of the Chairman of
the Board, to proceed with the transaction of business
without awaiting assignment of an additional Member to the
Section when the Section is composed of fewer than three
Members due to absence of a Member, vacancy on the Board or
inability of the Member assigned to the Section to serve on
the panel. The Chairman has directed that the Section
(CONTINUED ON NEXT PAGE)
proceed with the transaction of business, including the
issuance of decisions, without awaiting the assignment of a
third Member.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United
States Court of Veterans Appeals. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal. 57 Fed.
Reg. 4126 (1992) (to be codified as 38 C.F.R. § 20.1100(b)).